EXHIBIT 4(g)
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OHIO POWER COMPANY
TO
BANK ONE, N.A.
AS TRUSTEE.
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY 1, 2003
$250,000,000
6.60% SENIOR NOTES, SERIES E DUE 2033
6.60% SENIOR NOTES, SERIES G DUE 2033
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TABLE OF CONTENTS*
Page
ARTICLE I Additional Definitions..............................................2
SECTION 1.01. Definitions..............................................2
ARTICLE II 2033 Notes.........................................................4
SECTION 2.01. Establishment............................................4
SECTION 2.02. Aggregate Principal Amount...............................4
SECTION 2.03. Maturity and Interest....................................4
SECTION 2.04. Optional Redemption......................................5
SECTION 2.05. Limitation on Secured Debt...............................6
SECTION 2.06. Global Securities and Certificated Securities............6
SECTION 2.07. Form of Securities.......................................8
SECTION 2.08. Transfer and Exchange....................................8
ARTICLE III Miscellaneous Provisions.........................................13
SECTION 3.01. Recitals by Company.....................................13
SECTION 3.02. Ratification and Incorporation of Original Indenture....13
SECTION 3.03. Executed in Counterparts................................13
SECTION 3.04. Legends.................................................13
SECTION 3.05. Applicability of Section 4.05 and Article Ten of
Original Indenture.....................13
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* This Table of Contents does not constitute part of the Indenture or have
any bearing upon the interpretation of any of its terms and provisions.
THIS Second SUPPLEMENTAL INDENTURE is made as of the 1st day of
February, 2003, between OHIO POWER COMPANY, a corporation duly organized and
existing under the laws of the state of Ohio (herein called the "Company"),
having its principal office at 1 Riverside Plaza, Columbus, Ohio 43215 and Bank
One, N.A., a national banking association, duly organized and existing under the
laws of the United States, having its principal corporate trust office at 1111
Polaris Parkway, Columbus, Ohio 43240, as Trustee (herein called the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has heretofore entered into an Indenture, dated as
of February 1, 2003 (the "Original Indenture"), with the Trustee;
WHEREAS, the Original Indenture is incorporated herein by this
reference and the Original Indenture, as supplemented by this Second
Supplemental Indenture, is herein called the "Indenture";
WHEREAS, under the Original Indenture, a new series of unsecured notes
(the "Senior Notes") may at any time be established by the Board of Directors of
the Company in accordance with the provisions of the Original Indenture and the
terms of such series may be described by a supplemental indenture executed by
the Company and the Trustee;
WHEREAS, the Company proposes to create under the Indenture a series of
Senior Notes to be designated the "6.60% Senior Notes, Series E due 2033" (the
"Series E Notes") and a series of Senior Notes to be designated the "6.60%
Senior Notes, Series G due 2033" (the "Series G Notes"; and together with the
Series E Notes the "2033 Notes"), the form and substance of the 2033 Notes and
the terms, provisions and conditions thereof to be set forth as provided in the
Original Indenture and this Second Supplemental Indenture;
WHEREAS, concurrently with the issuance of the Series E Notes, the
Company proposes to create under the Indenture a series of Senior Notes to be
designated the "5.50% Series Notes Series D, due 2013" (the "Series D Notes")
and a series of Senior Notes to be designated the "5.50% Senior Notes, Series F,
due 2013" (the "Series F Notes"; and together with the Series D Notes, the "2013
Notes"), the form and substance of the 2013 Notes and the terms, provisions and
conditions thereof to be set forth as provided in the Original Indenture and the
First Supplemental Indenture;
WHEREAS, additional Senior Notes of other series hereafter established,
except as may be limited in the Original Indenture as at the time supplemented
and modified, may be issued from time to time pursuant to the Indenture as at
the time supplemented and modified; and
WHEREAS, all conditions necessary to authorize the execution and
delivery of this Second Supplemental Indenture and to make it a valid and
binding obligation of the Company have been done or performed.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
Additional Definitions
SECTION 1.01. ...Definitions
The following defined terms used herein shall, unless the context otherwise
requires, have the meanings specified below. Capitalized terms used herein for
which no definition is provided herein shall have the meanings set forth in the
Original Indenture.
"Clearstream" means Clearstream Banking, societe anonyme, or any
successor securities clearing agency.
"Distribution Compliance Period," with respect to the 2033 Notes, means
the period of 40 consecutive days beginning on and including the later of (i)
the day on which such 2033 Notes are first offered to Persons other than
distributors (as defined in Regulation S under the Securities Act) in reliance
on Regulation S and (ii) the Original Issue Date.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the Euroclear
System or any successor securities clearing agency.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer Registration Statement" shall have the meaning assigned
to it in the Registration Rights Agreement.
"Global Securities" means global certificates representing the 2033
Notes as described in Section 204.
"Holder" means a registered holder of a 2033 Note.
"Institutional Accredited Investor" has the meaning set forth in
Section 2.04(a) hereof.
"Ohio Wires Exchange Offer" shall have the meaning assigned to it in
the Registration Rights Agreement.
"Ohio Wires Notes" shall have the meaning assigned to it in the
Registration Rights Agreement.
"Original Issue Date" means February 14, 2003.
"Owner" means each Person who is the beneficial owner of a Global
Security as reflected in the records of the Depository or, if a Depository
participant is not the Owner, then as reflected in the records of a Person
maintaining an account with such Depository (directly or indirectly, in
accordance with the rules of such Depository).
"Permanent Regulation S Global Security" has the meaning set forth in
Section 2.04(b).
"QIBs" means qualified institutional buyers as defined in Rule 144A.
"Registered Exchange Offer" shall have the meaning assigned to Exchange
Offer in the Registration Rights Agreement.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of February 1, 2003 among the Company and the Initial
Purchasers named therein, relating to the registration of the 2013 Notes and the
2033 Notes under the Securities Act.
"Regulation S" means Regulation S under the Securities Act and any
successor regulation thereto.
"Rule 144" means Rule 144 under the Securities Act, as such rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the Securities and Exchange Commission.
"Rule 144A" means Rule 144A under the Securities Act, as such rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the Securities and Exchange Commission.
"Rule 144A Global Security" means any Series A Note that is to be
traded pursuant to Rule 144A.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, or any successor legislation.
"Securities Custodian" means the custodian with respect to a Global
Security (as appointed by the Depository), or any successor Person thereto and
shall initially be the Trustee.
"Shelf Registration Statement" shall have the meaning assigned to it in
the Registration Rights Agreement.
"Special Interest Premium" shall have the meaning assigned to it in the
Registration Rights Agreement.
"Stated Maturity" means February 15, 2033.
"Subsidiary" means any corporation or other entity of which sufficient
voting stock or other ownership or economic interests having ordinary voting
power to elect a majority of the board of directors (or equivalent body) are at
the time directly or indirectly held by the Company.
"Temporary Regulation S Global Security" has the meaning set forth in
Section 2.04(b).
"Transfer Restricted Security" shall have the meaning assigned to
Registrable Note in the Registration Rights Agreement.
"Transmission and Distribution Business" has the meaning set forth in
Section 3.05(a).
ARTICLE II
2033 Notes
SECTION 2.01. ...Establishment. The Series E Notes shall be designated as
the Company's "6.60% Senior Notes, Series E due 2033" and the Series G Notes
shall be designated as the Company's "6.60% Senior Notes, Series G due 2033".
The Series E Notes and the Series G Notes shall be treated for all purposes
under the Indenture as a single class or series of Senior Notes.
SECTION 2.02. ...Aggregate Principal Amount. The Trustee shall authenticate
and deliver (i) Series E Notes for original issue on the Original Issue Date in
the aggregate principal amount of $250,000,000 and (ii) Series G Notes from time
to time thereafter for issue only in exchange for Series E Notes pursuant to the
Exchange Offer Registration Statement in accordance with the Registration Rights
Agreement or pursuant to the Shelf Registration Statement in accordance with the
Registration Rights Agreement, in each case upon a Company Order for
authentication and delivery thereof and satisfaction of Section 2.01 of the
Original Indenture. The aggregate principal amount of the 2033 Notes shall be
initially limited to $250,000,000 and shall be subject to Periodic Offerings
pursuant to Article Two of the Original Indenture. All 2033 Notes need not be
issued at the same time and such series may be reopened at any time, without the
consent of any Holder, for issuances of additional 2033 Notes. Any such
additional 2033 Notes will have the same interest rate, maturity and other terms
as those initially issued. The Series E Notes shall be issued in definitive
fully registered form.
SECTION 2.03. ...Maturity and Interest. (i) The 2033 Notes shall mature on,
and the date on which the principal of the 2033 Notes shall be payable (unless
earlier redeemed) shall be, February 15, 2033;
(ii) The interest rate at which the 2033 Notes shall bear interest shall be
6.60% per annum; provided, however, that the Special Interest Premium
shall accrue on the 2033 Notes under certain circumstances as provided
in clause (iii) below; interest shall accrue from the date of
authentication of the 2033 Notes; the Interest Payment Dates on which
such interest will be payable shall be February 15 and August 15, and
the Regular Record Date for the determination of holders to whom
interest is payable on any such Interest Payment Date shall be the
January 31 or July 31 preceding the relevant Interest Payment Date;
provided that the first Interest Payment Date shall be August 15, 2003
and interest payable on the Stated Maturity or any redemption date
shall be paid to the Person to whom principal shall be paid; each
payment of interest shall include interest accrued through the day
before the Interest Payment Date;
(iii)Special Interest Premium shall accrue (a) on the Transfer Restricted
Securities over and above the interest rate set forth herein in
accordance with Section 2(e) of the Registration Rights Agreement and
(b) on the 2033 Notes over and above the interest rate set forth
herein in accordance with Section 7(d) or 7(e), as the case may be, of
the Registration Rights Agreement.
SECTION 2.04. Optional Redemption. The 2033 Notes shall be redeemable at
the option of the Company, in whole at any time or in part from time to time,
upon not less than thirty but not more than sixty days' previous notice given by
mail to the registered owners of the Notes at a redemption price equal to the
greater of (i) 100% of the principal amount of the 2033 Notes being redeemed and
(ii) the sum of the present values of the remaining scheduled payments of
principal and interest on the 2033 Notes being redeemed (excluding the portion
of any such interest accrued to the date of redemption) discounted (for purposes
of determining present value) to the redemption date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate (as defined below) plus 30 basis points, plus, accrued interest thereon to
the date of redemption.
"Treasury Rate" means, with respect to any redemption
date, the rate per annum equal to the semi-annual equivalent
yield to maturity of the Comparable Treasury Issue, assuming a
price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States
Treasury security selected by an Independent Investment Banker
as having a maturity comparable to the remaining term of the
2033 Notes that would be utilized, at the time of selection
and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the 2033 Notes.
"Comparable Treasury Price" means, with respect to
any redemption date, (i) the average of the bid and asked
prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) on the third
Business Day preceding such redemption date, as set forth in
the daily statistical release (or any successor release)
published by the Federal Reserve Bank of New York and
designated "Composite 3:30 p.m. Quotations for U. S.
Government Securities" or (ii) if such release (or any
successor release) is not published or does not contain such
prices on such third Business Day, the Reference Treasury
Dealer Quotation for such redemption date.
"Independent Investment Banker" means one of the
Reference Treasury Dealers appointed by the Company and
reasonably acceptable to the Trustee.
"Reference Treasury Dealer" means a primary U.S.
government securities dealer selected by the Company and
reasonably acceptable to the Trustee.
"Reference Treasury Dealer Quotation" means, with
respect to the Reference Treasury Dealer and any redemption
date, the average, as determined by the Trustee, of the bid
and asked prices for the Comparable Treasury Issue (expressed
in each case as a percentage of its principal amount) quoted
in writing to the Trustee by such Reference Treasury Dealer at
or before 5:00 p.m., New York City time, on the third Business
Day preceding such redemption date.
SECTION 2.05. Limitation on Secured Debt.. So long as any of the 2033 Notes
are outstanding, the Company will not create or suffer to be created or to exist
or permit any of its Subsidiaries to create or permit or suffer to be created or
exist any additional mortgage, pledge, security interest, or other lien
(collectively "Liens") on any utility properties or tangible assets now owned or
hereafter acquired by the Company or its Subsidiaries to secure any indebtedness
for borrowed money ("Secured Debt"), without providing that such 2033 Notes will
be similarly secured. Further, this restriction on Secured Debt does not apply
to the Company's existing first mortgage bonds that have previously been issued
under its mortgage indenture or any indenture supplemental thereto; provided
that this restriction will apply to future issuances thereunder (other than
issuances of refunding first mortgage bonds). In addition, this restriction does
not prevent the creation or existence of:
o Liens on property existing at the time of acquisition or construction
of such property (or created within one year after completion of such
acquisition or construction), whether by purchase, merger,
construction or otherwise, or to secure the payment of all or any part
of the purchase price or construction cost thereof, including the
extension of any Liens to repairs, renewals, replacements,
substitutions, betterments, additions, extensions and improvements
then or thereafter made on the property subject thereto;
o Financing of the Company's accounts receivable for electric service;
o Any extensions, renewals or replacements (or successive extensions,
renewals or replacements), in whole or in part, of Liens permitted by
the foregoing clauses; and
o The pledge of any bonds or other securities at any time issued under
any of the Secured Debt permitted by the above clauses.
In addition to the permitted issuances above, Secured Debt not
otherwise so permitted may be issued in an amount that does not exceed 15% of
Net Tangible Assets as defined below.
"Net Tangible Assets" means the total of all assets (including
revaluations thereof as a result of commercial appraisals, price level
restatement or otherwise) appearing on the Company's balance sheet, net of
applicable reserves and deductions, but excluding goodwill, trade names,
trademarks, patents, unamortized debt discount, energy trading contracts,
regulatory assets, deferred charges and all other like intangible assets (which
term shall not be construed to include such revaluations), less the aggregate of
the Company's current liabilities appearing on such balance sheet.
This restriction also will not apply to or prevent the creation or
existence of leases (operating or capital) made, or existing on property
acquired, in the ordinary course of business.
SECTION 2.06. Global Securities and Certificated Securities.
(a) General. The Series E Notes will be resold initially only to (i) QIBs
in reliance on Rule 144A under the Securities Act ("Rule 144A"), (ii)
institutional "accredited investors" as such term is defined in rule
501(a)(1), (2),(3) and (7) of Regulation D under the Securities Act
(each, an "Institutional Accredited Investor") and (iii) Persons other
than U.S. Persons (as defined in Regulation S) in reliance on
Regulation S under the Securities Act ("Regulation S"). Series E Notes
may thereafter be transferred to, among others, QIBs, purchasers in
reliance on Regulation S, and Institutional Accredited Investors in
each case, subject to the restrictions on transfer set forth herein.
(b) Global Securities.
(i) Form. Series E Notes initially resold pursuant to Rule 144A shall
be issued initially in the form of one or more permanent Global
Securities in definitive, fully registered form (collectively,
the "Rule 144A Global Security") and Series E Notes initially
resold pursuant to Regulation S and shall be issued initially in
the form of one or more temporary global securities in
definitive, fully registered form (collectively, the "Temporary
Regulation S Global Security"), in each case without interest
coupons and with the global securities legend and restricted
securities legend set forth in Exhibit A hereto, which shall be
deposited on behalf of the purchasers of the Series E name of the
Depository or a nominee of the Depository, duly executed by the
Company and authenticated by the Trustee as provided in the
Indenture. Except as set forth in this Section 2.06, beneficial
ownership interests in the Temporary Regulation S Global Security
(x) will not be exchangeable for interests in the Rule 144A
Global Security, the permanent global security (the "Permanent
Regulation S Global Security"), or any other security without a
legend containing restrictions on transfer of such security prior
to the expiration of the Distribution Compliance Period and (y)
then may be exchanged for interests in a Rule 144A Global
Security or the Permanent Regulation S Global Security only upon
certification that beneficial ownership interests in such
Temporary Regulation S Global Security are owned either by
non-U.S. persons or U.S. persons who purchased such interests in
a transaction that did not require registration under the
Securities Act.
The Rule 144A Global Security, the Temporary Regulation S Global
Security and the Permanent Regulation S Global Security are
collectively referred to herein as "Global Securities". The
aggregate principal amount of the Global Securities may from time
to time be increased or decreased by adjustments made on the
records of the Trustee and the Depository or its nominee as
hereinafter provided.
(ii) Book-Entry Provisions. This Section shall apply only to a Global
Security deposited with or on behalf of the Depository. The
Company shall execute and the Trustee shall, in accordance with
this Section 2.06(b)(ii), authenticate and deliver initially one
or more Global Securities that (a) shall be registered in the
name of the Depository for such Global Security or Global
Securities or the nominee of such Depository and (b) shall be
delivered by the Trustee to such Depository or pursuant to such
Depository's instructions or held by the Trustee as custodian for
the Depository.
Members of, or participants in, the Depository ("Agent
Members") shall have no rights under this Indenture with respect to any
Global Security held on their behalf by the Depository or by the
Trustee as the custodian of the Depository or under such Global
Security, and the Company, the Trustee and any agent of the Company or
the Trustee shall be entitled to treat the Depository as the absolute
owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the
Depository and its Agent Members, the operation of customary practices
of such Depository governing the exercise of the rights of a holder of
a beneficial interest in any Global Security.
To the extent a notice or other communication to the
beneficial owners of the 2033 Notes is required under the Indenture,
unless and until Certificated Securities shall have been issued to such
owners, the Trustee shall give all such notices and communications
specified herein to be given to such owners to the Depository, and
shall have no obligations to such Owners.
(c) Certificated Securities. Series E Notes sold to Institutional
Accredited Investors shall be issued initially in the form of a fully
registered, certificated Series E Note ("Certificated Securities"). Except as
provided in this Section 2.06, owners of beneficial interests in Global
Securities shall not be entitled to receive physical delivery of Certificated
Securities.
Global Securities shall be exchangeable for Certificated Securities if
(i) the Depository (x) notifies the Company that it is unwilling or unable to
continue as Depository for the Global Securities or (y) shall no longer be
registered or in good standing under the Exchange Act, or other applicable
statute or regulation, and a successor Depository for the Global Securities is
not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition. Upon surrender to the Trustee of the
typewritten certificate or certificates representing the Global Securities by
the Depository, accompanied by registration instructions, the Trustee shall
execute and authenticate the certificates in accordance with the instructions of
the Depository. Neither the Security Registrar nor the Trustee shall be liable
for any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Certificated Securities, the Trustee shall recognize the Holders of the
Certificated Securities as Holders. The Certificated Securities shall be
printed, lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Company, as evidenced by the execution thereof by
the Company, and shall bear the legend set forth on Exhibit A hereto unless the
Company informs the Trustee that such legend is no longer required.
SECTION 2.07. Form of Securities. The Global Securities and Certificated
Securities shall be substantially in the form attached as Exhibit A thereto.
SECTION 2.08. Transfer and Exchange.
(a) General. The 2033 Notes may not be transferred except in compliance
with the legend contained in Exhibit A unless otherwise determined by
the Company in accordance with applicable law. No service charge will
be made for any transfer or exchange of 2033 Notes, but payment will
be required of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith.
(b) Transfer and Exchange of Global Securities.
(i) If a holder of a beneficial interest in the Rule 144A Global
Security wishes at any time to exchange its interest in the Rule
144A Global Security for an interest in the Permanent Regulation
S Global Security, or to transfer its interest in the Rule 144A
Global Security to a person who wishes to take delivery thereof
in the form of an interest in the Permanent Regulation S Global
Security, such holder may, subject to the rules and procedures of
the Depository and to the requirements set forth in the following
sentence, exchange or cause the exchange or transfer or cause the
transfer of such interest for an equivalent beneficial interest
in the Permanent Regulation S Global Security. Upon receipt by
the Trustee, as transfer agent, of (1) instructions given in
accordance with the Depository's procedures from or on behalf of
a holder of a beneficial interest in the Rule 144A Global
Security, directing the Trustee, as transfer agent, to credit or
cause to be credited a beneficial interest in the Permanent
Regulation S Global Security in an amount equal to the beneficial
interest in the Rule 144A Global Security to be exchanged or
transferred, (2) a written order given in accordance with the
Depository's procedures containing information regarding the
Euroclear or Clearstream account to be credited with such
increase and the name of such account, and (3) a certificate in
the form of Exhibit C hereto given by the holder of such
beneficial interest stating that the exchange or transfer of such
interest has been made pursuant to and in accordance with Rule
903 or Rule 904 of Regulation S under the Securities Act, the
Trustee, as transfer agent, shall promptly deliver appropriate
instructions to the Depository, its nominee, or the custodian for
the Depository, as the case may be, to reduce or reflect on its
records a reduction of the Rule 144A Global Security by the
aggregate principal amount of the beneficial interest in such
Rule 144A Global Security to be so exchanged or transferred from
the relevant participant, and the Trustee, as transfer agent,
shall promptly deliver appropriate instructions to the
Depository, its nominee, or the custodian for the Depository, as
the case may be, concurrently with such reduction, to increase or
reflect on its records an increase of the principal amount of
such Permanent Regulation S Global Security by the aggregate
principal amount of the beneficial interest in such Rule 144A
Global Security to be so exchanged or transferred, and to credit
or cause to be credited to the account of the person specified in
such instructions (who may be Euroclear or Clearstream or another
agent member of Euroclear or Clearstream or both, as the case may
be, acting for and on behalf of them) a beneficial interest in
such Permanent Regulation S Global Security equal to the
reduction in the principal amount of such Rule 144A Global
Security.
(ii) If a holder of a beneficial interest in the Permanent Regulation
S Global Security wishes at any time to exchange its interest in
the Permanent Regulation S Global Security for an interest in the
Rule 144A Global Security, or to transfer its interest in the
Permanent Regulation S Global Security to a person who wishes to
take delivery thereof in the form of an interest in the Rule 144A
Global Security, such holder may, subject to the rules and
procedures of Euroclear or Clearstream and the Depository, as the
case may be, and to the requirements set forth in the following
sentence, exchange or cause the exchange or transfer or cause the
transfer of such interest for an equivalent beneficial interest
in such Rule 144A Global Security. Upon receipt by the Trustee,
as transfer agent, of (1) instructions given in accordance with
the procedures of Euroclear or Clearstream and the Depository, as
the case may be, from or on behalf of a beneficial owner of an
interest in the Permanent Regulation S Global Security directing
the Trustee, as transfer agent, to credit or cause to be credited
a beneficial interest in the Rule 144A Global Security in an
amount equal to the beneficial interest in the Permanent
Regulation S Global Security to be exchanged or transferred, (2)
a written order given in accordance with the procedures of
Euroclear or Clearstream and the Depository, as the case may be,
containing information regarding the account with the Depository
to be credited with such increase and the name of such account,
and (3) prior to the expiration of the Distribution Compliance
Period, a certificate in the form of Exhibit C hereto given by
the holder of such beneficial interest and stating that the
person transferring such interest in such Permanent Regulation S
Global Security reasonably believes that the person acquiring
such interest in the Rule 144A Global Security is a QIB and is
obtaining such beneficial interest for its own account or the
account of a QIB in a transaction meeting the requirements of
Rule 144A and any applicable securities laws of any state of the
United States or any other jurisdiction, the Trustee, as transfer
agent, shall promptly deliver appropriate instructions to the
Depository, its nominee, or the custodian for the Depository, as
the case may be, to reduce or reflect on its records a reduction
of the Permanent Regulation S Global Security by the aggregate
principal amount of the beneficial interest in such Permanent
Regulation S Global Security to be exchanged or transferred, and
the Trustee, as transfer agent, shall promptly deliver
appropriate instructions to the Depository, its nominee, or the
custodian for the Depository, as the case may be, concurrently
with such reduction, to increase or reflect on its records an
increase of the principal amount of the Rule 144A Global Security
by the aggregate principal amount of the beneficial interest in
the Permanent Regulation S Global Security to be so exchanged or
transferred, and to credit or cause to be credited to the account
of the person specified in such instructions a beneficial
interest in the Rule 144A Global Security equal to the reduction
in the principal amount of the Permanent Regulation S Global
Security. After the expiration of the Distribution Compliance
Period, the certification requirement set forth in clause (3) of
the second sentence of this Section 2.08(b)(ii) will no longer
apply to such exchanges and transfers.
(iii)Any beneficial interest in one of the Global Securities that is
transferred to a person who takes delivery in the form of an
interest in the other Global Securities will, upon transfer,
cease to be an interest in such Global Security and become an
interest in the other Global Securities and, accordingly, will
thereafter be subject to all transfer restrictions and other
procedures applicable to beneficial interests in such other
Global Security Note for as long as it remains such an interest.
(iv) Beneficial interests in Temporary Regulation S Global Securities
may be exchanged for interests in Rule 144A Global Securities or
Permanent Regulation S Global Securities if (1) such exchange
occurs in connection with a transfer of securities in compliance
with Rule 144A, and (2) the transferor of the beneficial interest
in the Temporary Regulation S Global Security first delivers to
the Trustee a written certificate (in a form satisfactory to the
Trustee) to the effect that the beneficial interest in the
Temporary Regulation S Global Security is being transferred to a
Person (a) who the transferor reasonably believes to be a QIB (b)
purchasing for its own account or the account of a QIB in a
transaction meeting the requirements of Rule 144A, and (c) in
accordance with all applicable securities laws of the states of
the United States and other jurisdictions.
(v) During the Distribution Compliance Period, beneficial ownership
interests in Temporary Regulation S Global Securities may only be
sold, pledged or transferred through Euroclear or Clearstream in
accordance with the applicable procedures relating to such
institutions and only (i) to the Company, (ii) so long as such
security is eligible for resale pursuant to Rule 144A, to a
Person whom the selling holder reasonably believes is a QIB that
purchases for its own account or for the account of a QIB in a
transaction meeting the requirements of Rule 144A, (iii) in an
offshore transaction in accordance with Regulation S (other than
a transaction resulting in an exchange for interest in a
Permanent Regulation S Global Security), (iv) pursuant to an
exemption from registration under the Securities Act provided by
Rule 144 (if applicable) under the Securities Act or (v) pursuant
to an effective registration statement under the Securities Act,
in each case in accordance with any applicable securities laws of
any state of the United States.
(c) Transfer and Exchange of Global Securities and Certificated
Securities.
(i) In the event that a Global Security is exchanged for a
Certificated Security as provided in Section 2.06(c), such
Certificated Security may be exchanged or transferred for one
another, subject to Section 2.05 of the Original Indenture, only
in accordance with such procedures as are substantially
consistent with the provisions of clauses (b)(i) and (ii) above
(including the certification requirements intended to ensure that
such exchanges or transfers comply with Rule 144, Rule 144A or
Regulation S, as the case may be) and as may be from time to time
reasonably adopted by the Company.
(ii) Upon receipt by the Trustee of a Certificated Security, duly
endorsed or accompanied by appropriate instruments of transfer,
the Trustee shall cancel such Certificated Security and cause, or
direct the Securities Custodian to cause, in accordance with the
standing instructions and procedures existing of the Depository
and the Securities Custodian, the aggregate principal amount of
2033 Notes represented by the Rule 144A Global Security or
Permanent Regulation S Global Security, as applicable, to be
increased by the aggregate principal amount of the Certificated
Security to be exchanged and shall credit or cause to be credited
to the account of the Person specified in such instructions a
beneficial interest in the Rule 144A Global Security or Permanent
Regulation S Global Security, as applicable, equal to the
principal amount of the Certificated Security so canceled. If no
Rule 144A Global Securities or Permanent Regulation S Global
Securities, as applicable, are then outstanding, the Company
shall issue and the Trustee shall authenticate, upon written
order of the Company in the form of an Officers' Certificate, a
new Rule 144A Global Security or Permanent Regulation S Global
Security, as applicable, in the appropriate principal amount.
(d) Certificates. In connection with any transfer described in paragraphs
(b) and (c) of this Section 2.08, the Trustee shall receive a
certificate of transfer in the form attached as Exhibit C hereto.
Additionally, upon any transfer or exchange to an Institutional
Accredited Investor, the Company and the Trustee shall receive a
certificate in the form attached as Exhibit D hereto.
(e) Transfer Restricted Security. Upon any sale or transfer of a Transfer
Restricted Security (including any Transfer Restricted Security
represented by a Global Security) pursuant to Rule 144 under the
Securities Act or an effective registration statement under the
Securities Act, which shall be certified to the Trustee and Security
Registrar upon which each may conclusively rely:
(i) in the case of any Transfer Restricted Security represented by a
Certificated Security, the Security Registrar shall permit the
Holder thereof to exchange such Transfer Restricted Security for
a Certificated Security that does not bear the legend set forth
in Exhibit A hereto and rescind any restriction on the transfer
of such Transfer Restricted Security; and
(ii) in the case of any Transfer Restricted Security represented by a
Global Security, such Transfer Restricted Security shall not be
required to bear the legend set forth in Exhibit A hereto if all
other interests in such Global Note have been or are concurrently
being sold or transferred pursuant to Rule 144 under the
Securities Act or pursuant to an effective registration statement
under the Securities Act.
(f) Registered Exchange Offer. Notwithstanding the foregoing, upon
consummation of the Registered Exchange Offer, the Company shall issue
and, upon receipt of a Company Order in accordance with Section 2.05
of the Original Indenture, the Trustee shall authenticate Series G
Notes in exchange for Series E Notes accepted for exchange in the
Registered Exchange Offer, which Series G Notes shall not bear the
transfer restriction legend set forth in Exhibit A hereto and shall
not provide for Special Interest Premium (except in certain
circumstances related to the Ohio Wires Exchange Offer as set forth in
Section 2.03(iii)(b) herein) and the Security Registrar shall rescind
any restriction on the transfer of such Series G Notes, in each case
unless the Holder of such Series E Notes (A) is a broker-dealer
tendering Series E Notes acquired directly from the Company or an
"affiliate" (as defined in Rule 144 under the Securities Act) of the
Company for its own account, (B) is a Person who has an arrangement or
understanding with any Person to participate in the "distribution"
(within the meaning of the Securities Act) of the Series G Notes, (C)
is a Person who is an "affiliate" (as defined in Rule 144 under the
Securities Act) of the Company or (D) will not be acquiring the Series
G Notes in the ordinary course of such Holder's business. The Company
shall identify to the Trustee such Holders in a written certification
signed by an Officer of the Company and, absent certification from the
Company to such effect, the Trustee shall assume that there are no
such Holders.
(g) Ohio Wires Exchange Offer. Notwithstanding the foregoing, upon
consummation of the Ohio Wires Exchange Offer, Holders of the 2033
Notes shall be permitted to exchange such 2033 Notes for Ohio Wires
Notes as set forth in Section 7 of the Registration Rights Agreement
and in a manner mutually acceptable to the Trustee and the Company.
ARTICLE III
Miscellaneous Provisions
SECTION 3.01. Recitals by Company. The recitals in this Second Supplemental
Indenture are made by the Company only and not by the Trustee, and all of the
provisions contained in the Original Indenture in respect of the rights,
privileges, immunities, powers and duties of the Trustee shall be applicable in
respect of 2033 Notes and of this Second Supplemental Indenture as fully and
with like effect as if set forth herein in full.
SECTION 3.02. Ratification and Incorporation of Original Indenture. As
supplemented hereby, the Original Indenture is in all respects ratified and
confirmed, and the Original Indenture and this Second Supplemental Indenture
shall be read, taken and construed as one and the same instrument.
SECTION 3.03. Executed in Counterparts. This Second Supplemental Indenture
may be simultaneously executed in several counterparts, each of which shall be
deemed to be an original, and such counterparts shall together constitute but
one and the same instrument.
SECTION 3.04. Legends. Except as determined by the Company in accordance
with applicable law, each 2033 Note shall bear the applicable legends relating
to restrictions on transfer pursuant to the securities laws in substantially the
form set forth on Exhibit A hereto.
SECTION 3.05. Applicability of Section 4.05 and Article Ten of Original
Indenture.
(a) As long as the 2033 Notes are outstanding, Section 4.05 and Article
Ten of the Original Indenture shall be applicable thereto; provided,
however, that the transfer of all or substantially all of the
Company's transmission and distribution assets ("Transmission and
Distribution Business") (whether or not the Transmission and
Distribution Business constitutes "substantially all" of the Company's
total assets) to Ohio Wires LLC ("Ohio Wires") shall not be subject to
Section 4.05 and Article Ten of the Original Indenture.
(b) To the extent the Transmission and Distribution Business is
transferred to Ohio Wires, holders of 2033 Notes shall be given the
option to either (i) retain their 2033 Notes or (ii) exchange their
2033 Notes for Ohio Wires Notes pursuant to the Ohio Wires Exchange
Offer.
IN WITNESS WHEREOF, each party hereto has caused this instrument to be
signed in its name and behalf by its duly authorized signatories, all as of the
day and year first above written.
OHIO POWER COMPANY
By /s/ G. S. Chatas
Assistant Treasurer
Attest:
By /s/ T. G. Berkemeyer
Assistant Secretary
BANK ONE, N. A.,
as Trustee
By /s/ Jeffery L. Eubank
Vice President
Attest:
By /s/ Jose Paredes
Authorized Signer
EXHIBIT A
FORM OF SERIES [E/G] NOTE
[Rule 144A Global Security]
[Regulation S Global Security]
[Certificated Security]
[FORM OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OR PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[FOR REGULATION S GLOBAL NOTE ONLY] UNTIL 40 DAYS AFTER THE
COMMENCEMENT OF THE OFFERING, AN OFFER OR SALE OF NOTES WITHIN THE UNITED STATES
BY A DEALER (AS DEFINED IN THE U.S. SECURITIES ACT) MAY VIOLATE THE REGISTRATION
REQUIREMENTS OF THE U.S. SECURITIES ACT IF SUCH OFFER OR SALE IS MADE OTHERWISE
THAN IN ACCORDANCE WITH RULE 144A THEREUNDER.
[Restricted Securities Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING
THIS SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (A)(1) TO THE COMPANY,
(2) IN A TRANSACTION ENTITLED TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT, (3) SO LONG AS THIS SECURITY IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (4) OUTSIDE THE UNITED
STATES IN A TRANSACTION MEETING THE REQUIREMENTS OF REGULATION S UNDER THE
SECURITIES ACT, (5) IN ACCORDANCE WITH ANOTHER APPLICABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY) OR (6) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT AND (B) IN EACH CASE
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF EACH STATE OF THE UNITED
STATES. AN INSTITUTIONAL ACCREDITED INVESTOR HOLDING THIS SECURITY AGREES IT
WILL FURNISH TO THE COMPANY AND THE TRUSTEE SUCH CERTIFICATES AND OTHER
INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF
THIS SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS. THE HOLDER HEREOF, BY
PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY
THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
OR (2) AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE
501(A)(1), (2),(3) OR (7) UNDER THE SECURITIES ACT AND THAT IT IS HOLDING THIS
SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3) A NON-U.S.
PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT.
[Temporary Regulation S Global Security Legend]
EXCEPT AS SET FORTH BELOW, BENEFICIAL OWNERSHIP INTEREST IN
THIS TEMPORARY REGULATION S GLOBAL SECURITY WILL NOT BE EXCHANGEABLE FOR
INTERESTS IN THE PERMANENT REGULATION S GLOBAL SECURITY OR ANY OTHER SECURITY
REPRESENTING AN INTEREST IN THE SECURITIES REPRESENTED HEREBY WHICH DO NOT
CONTAIN A LEGEND CONTAINING RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF
THE "40-DAY DISTRIBUTION COMPLIANCE PERIOD" (WITHIN THE MEANING OF RULE
903(d)(3) OF REGULATION S UNDER THE SECURITIES ACT) AND THEN ONLY UPON
CERTIFICATION IN FORM REASONABLY SATISFACTORY TO THE TRUSTEE THAT SUCH
BENEFICIAL INTERESTS ARE OWNED EITHER BY NON-U.S. PERSONS OR U.S. PERSONS WHO
PURCHASED SUCH INTERESTS IN A TRANSACTION THAT DID NOT REQUIRE REGISTRATION
UNDER THE SECURITIES ACT. DURING SUCH 40-DAY DISTRIBUTION COMPLIANCE PERIOD,
BENEFICIAL OWNERSHIP INTEREST IN THIS TEMPORARY REGULATION S GLOBAL SECURITY MAY
ONLY BE SOLD, PLEDGED OR TRANSFERRED THROUGH EUROCLEAR BANK S.A./N.A., AS
OPERATOR OF THE EUROCLEAR SYSTEM OR CLEARSTREAM BANKING, SOCIETE ANONYME AND
ONLY (I) TO THE COMPANY, (II) IN THE UNITED STATES TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A
, (III) OUTSIDE THE UNITED STATES IN A TRANSACTION IN ACCORDANCE WITH RULE 904
UNDER THE SECURITIES ACT, OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASE (I) THROUGH (IV) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES. HOLDERS OF INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL SECURITY WILL
NOTIFY ANY PURCHASER OF THIS SECURITY OF THE RESALE RESTRICTIONS REFERRED TO
ABOVE, IF THEN APPLICABLE.
BENEFICIAL INTERESTS IN THIS TEMPORARY REGULATIONS S GLOBAL
SECURITY MAY BE EXCHANGED FOR INTEREST IN A RULE 144A GLOBAL SECURITY ONLY IF
(1) SUCH EXCHANGE OCCURS IN CONNECTION WITH A TRANSFER OF THE NOTES IN
COMPLIANCE WITH RULE 144A, AND (2) THE TRANSFEROR OF THE REGULATION S GLOBAL
SECURITY FIRST DELIVERS TO THE TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM
ATTACHED TO THIS CERTIFICATE) TO THE EFFECT THAT THE REGULATION S GLOBAL
SECURITY BEING TRANSFERRED TO A PERSON (A) WHO THE TRANSFEROR REASONABLY
BELIEVES TO BE A QUALIFIED INSTITUTIONAL BUYER WHEN THE MEANING OF RULE 144A (B)
PURCHASING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, AND (C) IN ACCORDANCE
WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER
JURISDICTIONS.
BENEFICIAL INTEREST IN A RULE 144A GLOBAL SECURITY MAY BE
TRANSFERRED TO A PERSON WHO TAKES DELIVERY IN THE FORM OF AN INTEREST IN THE
REGULATION S GLOBAL SECURITY, WHETHER BEFORE OR AFTER THE EXPIRATION OF THE
40-DAY DISTRIBUTION COMPLIANCE PERIOD, ONLY IF THE TRANSFEROR FIRST DELIVERS TO
THE TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO THIS CERTIFICATE) TO
THE EFFECT THAT IF SUCH TRANSFER IS BEING MADE IN ACCORDANCE WITH RULE 903 OR
904 OF REGULATION S OR RULE 144 (IF AVAILABLE) AND THAT, IF SUCH TRANSFER OCCURS
PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD, THE
INTEREST TRANSFERRED WILL BE HELD IMMEDIATELY THEREAFTER THROUGH EUROCLEAR BANK
S.A./N.A. OR CLEARSTREAM BANKING SOCIETE ANONYME.
[Certificated Securities Legend]
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO
THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH
THE FOREGOING RESTRICTIONS.
OHIO POWER COMPANY
6.60% Senior Notes,
Series [E/G] due
2033
CUSIP:[677415 CE9/144A] [U6777UAB4/RegS] Original Issue Date:February 14, 2003
Stated Maturity: February 15, 2033 Interest Rate: 6.60%
Principal Amount: $250,000,000 (or such other amount as is indicated on
Schedule A)
Redeemable: Yes X No
In Whole: Yes X No
In Part: Yes X No
OHIO POWER COMPANY, a corporation duly organized and existing
under the laws of the State of Ohio (herein referred to as the "Company", which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to [________] or registered
assigns, the principal sum of _____ DOLLARS ($_____) [or such other amount as is
indicated on Schedule A hereto] on the Stated Maturity specified above (or upon
earlier redemption); and to pay interest on said Principal Amount from the
Original Issue Date specified above or from the most recent interest payment
date (each such date, an "Interest Payment Date") to which interest has been
paid or duly provided for, semi-annually in arrears on February 15 and August 15
in each year, commencing on August 15, 2003, at the Interest Rate per annum
specified above, until the Principal Amount shall have been paid or duly
provided for. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date, as provided in the Indenture, as hereinafter
defined, shall be paid to the Person in whose name this Note (or one or more
Predecessor Securities) shall have been registered at the close of business on
the Regular Record Date with respect to such Interest Payment Date, which shall
be the January 31 or July 31 (whether or not a Business Day), as the case may
be, immediately preceding such Interest Payment Date, provided that interest
payable on the Stated Maturity or any redemption date shall be paid to the
Person to whom principal is paid. Any such interest not so punctually paid or
duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date and shall be paid as provided in said Indenture.
If any Interest Payment Date, any redemption date or Stated
Maturity is not a Business Day, then payment of the amounts due on this Note on
such date will be made on the next succeeding Business Day, and no interest
shall accrue on such amounts for the period from and after such Interest Payment
Date, redemption date or Stated Maturity, as the case may be, except that, if
such Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day, with the same force and effect
as if made on such date. The principal of (and premium, if any) and the interest
on this Note shall be payable at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, the City of New York, New York, in
any coin or currency of the United States of America which at the time of
payment is legal tender for payment of public and private debts; provided,
however, that payment of interest (other than interest payable on Stated
Maturity or any redemption date) may be made at the option of the Company by
check mailed to the registered holder at such address as shall appear in the
Security Register.
This Note is one of a duly authorized series of Notes of the
Company (herein sometimes referred to as the "Notes"), specified in the
Indenture (defined below), all issued or to be issued in one or more series
under and pursuant to an Indenture dated as of February 1, 2003 duly executed
and delivered between the Company and Bank One, N. A., a corporation organized
and existing under the laws of the United States, as Trustee (herein referred to
as the "Trustee") (such Indenture, as originally executed and delivered and as
thereafter supplemented and amended being hereinafter referred to as the
"Indenture"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and
the holders of the Notes. By the terms of the Indenture, the Notes are issuable
in series which may vary as to amount, date of maturity, rate of interest and in
other respects as in the Indenture provided. This Note is one of the series of
Notes designated on the face hereof as 6.60% Senior Notes, Series [E/G] due 2033
initially issued in the aggregate principal amount of $250,000,000.
This Note may be redeemed by the Company at its option, in
whole at any time or in part from time to time, upon not less than thirty but
not more than sixty days' previous notice given by mail to the registered owners
of the Note at a redemption price equal to the greater of (i) 100% of the
principal of the Note being redeemed and (ii) the sum of the present values of
the remaining scheduled payments of principal and interest on the Note being
redeemed (excluding the portion of any such interest accrued to the date of
redemption) discounted (for purposes of determining present value) to the
redemption date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate (as defined below) plus 30 basis
points, plus, in each case, accrued interest thereon to the date of redemption.
"Treasury Rate" means, with respect to any redemption date, the rate
per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Notes that would be utilized,
at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of the Notes.
"Comparable Treasury Price" means, with respect to any redemption date,
(1) the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount)
on the third Business Day preceding such redemption date, as set forth
in the daily statistical release (or any successor release) published
by the Federal Reserve Bank of New York and designated "Composite 3:30
p.m. Quotations for U.S. Government Securities" or (2) if such release
(or any successor release) is not published or does not contain such
prices on such third Business Day, the Reference Treasury Dealer
redemption date.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Company and reasonably acceptable to the
Trustee.
"Reference Treasury Dealer" means a primary U.S. government securities
dealer selected by the Company and reasonably acceptable to the
Trustee.
"Reference Treasury Dealer Quotation" means, with respect to the
Reference Treasury Dealer and any redemption date, the average, as
determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) quoted in writing to the Trustee by such
Reference Treasury Dealer at or before 5:00 p.m., New York City time,
on the third Business Day preceding such redemption date.
The Company shall not be required to (i) issue, exchange or
register the transfer of any Notes during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of less
than all the outstanding Notes of the same series and ending at the close of
business on the day of such mailing, nor (ii) register the transfer of or
exchange of any Notes of any series or portions thereof called for redemption.
This Global Note is exchangeable for Notes in definitive registered form only
under certain limited circumstances set forth in the Indenture.
In the event of redemption of this Note in part only, a new
Note or Notes of this series, of like tenor, for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the surrender of this Note.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all of the Notes may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time
of the entire indebtedness of this Note upon compliance by the Company with
certain conditions set forth therein. This Note will not have a sinking fund.
As described in the supplemental indenture relating to the
Notes, so long as this Note is outstanding, the Company is subject to a
limitation on issuance of Secured Debt as described therein.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes of each series affected at the time
outstanding, as defined in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Notes; provided,
however, that no such supplemental indenture shall (i) extend the fixed maturity
of any Notes of any series, or reduce the principal amount thereof, or reduce
the rate or extend the time of payment of interest thereon, or reduce any
premium payable upon the redemption thereof, or reduce the amount of the
principal of a Discount Security that would be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to the Indenture,
without the consent of the holder of each Note then outstanding and affected;
(ii) reduce the aforesaid percentage of Notes, the holders of which are required
to consent to any such supplemental indenture, or reduce the percentage of
Notes, the holders of which are required to waive any default and its
consequences, without the consent of the holder of each Note then outstanding
and affected thereby; or (iii) modify any provision of Section 6.01(c) of the
Indenture (except to increase the percentage of principal amount of securities
required to rescind and annul any declaration of amounts due and payable under
the Notes), without the consent of the holder of each Note then outstanding and
affected thereby. The Indenture also contains provisions permitting the Holders
of a majority in aggregate principal amount of the Notes of all series at the
time outstanding affected thereby, on behalf of the Holders of the Notes of such
series, to waive any past default in the performance of any of the covenants
contained in the Indenture, or established pursuant to the Indenture with
respect to such series, and its consequences, except a default in the payment of
the principal of or premium, if any, or interest on any of the Notes of such
series. Any such consent or waiver by the registered Holder of this Note (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders and owners of this Note and of any Note
issued in exchange herefor or in place hereof (whether by registration or
transfer or otherwise), irrespective of whether or not any notation of such
consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and premium, if
any, and interest on this Note at the time and place and at the rate and in the
money herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, this Note is transferable by the registered
holder hereof on the Security Register of the Company, upon surrender of this
Note for registration of transfer at the office or agency of the Company as may
be designated by the Company accompanied by a written instrument or instruments
of transfer in form satisfactory to the Company or the Trustee duly executed by
the registered Holder hereof or his or her attorney duly authorized in writing,
and thereupon one or more new Notes of authorized denominations and for the same
aggregate principal amount and series will be issued to the designated
transferee or transferees. No service charge will be made for any such transfer,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Note, the Company, the Trustee, any paying agent and any Security Registrar may
deem and treat the registered Holder hereof as the absolute owner hereof
(whether or not this Note shall be overdue and notwithstanding any notice of
ownership or writing hereon made by anyone other than the Note Registrar) for
the purpose of receiving payment of or on account of the principal hereof and
premium, if any, and interest due hereon and for all other purposes, and neither
the Company nor the Trustee nor any paying agent nor any Security Registrar
shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Note, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
released waived and released.
The Notes of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof
except that a Note issued to an Institutional Accredited Investor will be in
denominations of at $250,000. As provided in the Indenture and subject to
certain limitations, Notes of this series are exchangeable for a like aggregate
principal amount of Notes of this series of a different authorized denomination,
as requested by the Holder surrendering the same.
All terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
This Note shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by or on
behalf of the Trustee.
IN WITNESS WHEREOF, the Company has caused this Instrument to
be executed.
OHIO POWER COMPANY
By: ______________
Attest:
By: ____________________________
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM-as tenants in UNIF GIFT MIN ACT-_______ Custodian ________
common (Cust) (Minor)
TEN ENT-as tenants by the under Uniform Gifts to
entireties Minors Act
JT TEN- As joint tenants with
right of survivorship -------------------------
and not as tenants in (State)
common
Additional abbreviations may also be used
though not on the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s) and transfer(s) unto
___________________ (please insert Social Security or other identifying number
of assignee)
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
agent to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated: ___________
NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of the within instrument in every
particular without alteration or enlargement,
or any change whatever.
In connection with any transfer of any of the Series E Notes evidenced
by this certificate, the undersigned confirms that such Series E Notes are
being:
CHECK ONE BOX BELOW
(1) exchanged for the undersigned's own account without transfer; or
(2) transferred to a person whom the undersigned reasonably believes to be
a "qualified institutional buyer" as defined in Rule 144A under the
Securities Act of 1933 who is purchasing such Series E Notes for such
buyer's own account or the account of a "qualified institutional
buyer" in a transaction meeting the requirements of Rule 144A under
the Securities Act of 1933 and any applicable securities laws of any
state of the United States or any other jurisdiction; or
(3) exchanged or transferred pursuant to and in compliance with Rule 903
or 904 of Regulation S under the Securities Act of 1933; or
(4) exchanged or transferred to an institutional "accredited investor"
within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act pursuant to Rule 144A (and based upon an
opinion of counsel if the Company or the Trustee so requests) and, to
the knowledge of the transferor of the Series E Notes, such
institutional accredited investor to whom such Note is to be
transferred is not an "affiliate" (as defined in Rule 144 under the
Securities Act) of the Company; or
(5) transferred pursuant to another available exemption from the
registration requirements of the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Series E Notes evidenced by this certificate in the name of any
person other than the registered Holder thereof; provided, however, that if box
(3), (4) or (5) is checked, the Company may require, prior to registering any
such transfer of the Series E Notes, such legal opinions, certifications and
other information as the Company has reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of 1933, such as
the exemption provided by Rule 144 under such Act; provided, further, that if
box (2) is checked, the transferee must also certify that it is a qualified
institutional buyer as defined in Rule 144A.
----------------------------------------
Signature
- ---------------------------------------
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Series E Note for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Date: _________________
- ----------------------
NOTICE: To be executed by an executive officer.
SCHEDULE A
The initial aggregate principal amount of Series E Notes evidenced by
the Certificate to which this Schedule is attached is $___________. The
notations on the following table evidence decreases and increases in the
aggregate principal amount of Series E Notes evidenced by such Certificate.
Principal Amount
Decrease in Increase in of Series D
Principal Principal Notes Remaining
Amount of Amount of After Such Decrease Notation by
Series D Notes Series D Notes or Increase Security Registrar
EXHIBIT B
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
BANK ONE, N. A.,
as Trustee
By:
Authorized Signatory
Ex. C-2
Doc #179502.v1
EXHIBIT C
FORM OF TRANSFER CERTIFICATE
In connection with any transfer of any of the Series E Notes evidenced
by this certificate, the undersigned confirms that such Series E Notes are
being:
CHECK ONE BOX BELOW
(1) exchanged for the undersigned's own account without transfer; or
(2) transferred to a person whom the undersigned reasonably believes to be
a "qualified institutional buyer" as defined in Rule 144A under the
Securities Act of 1933 who is purchasing such Series E Notes for such
buyer's own account or the account of a "qualified institutional
buyer" in a transaction meeting the requirements of Rule 144A under
the Securities Act of 1933 and any applicable securities laws of any
state of the United States or any other jurisdiction; or
(3) exchanged or transferred pursuant to and in compliance with Rule 903
or 904 of Regulation S under the Securities Act of 1933; or
(4) exchanged or transferred to an institutional "accredited investor"
within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act pursuant to Rule 144A (and based upon an
opinion of counsel if the Company or the Trustee so requests) and, to
the knowledge of the transferor of the Series E Notes, such
institutional accredited investor to whom such Note is to be
transferred is not an "affiliate" (as defined in Rule 144 under the
Securities Act) of the Company; or
(5) transferred pursuant to another available exemption from the
registration requirements of the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Series E Notes evidenced by this certificate in the name of any
person other than the registered Holder thereof; provided, however, that if box
(3) or (4) is checked, the Company may require, prior to registering any such
transfer of the Series E Notes, such legal opinions, certifications and other
information as the Company has reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of 1933, such as
the exemption provided by Rule 144 under such Act; provided, further, that if
box (2) is checked, the transferee must also certify that it is a qualified
institutional buyer as defined in Rule 144A.
Signature
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Series E Note for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Date: _______________
______________
- -----------------------
NOTICE: To be executed by an executive officer.
EXHIBIT D
FORM OF LETTER TO BE DELIVERED BY
INSTITUTIONAL ACCREDITED INVESTORS
Ladies and Gentlemen:
In connection with our proposed purchase of the 6.60% Senior Notes,
Series E due 2033 (the Notes) issued by Ohio Power Company, an Ohio corporation
(Issuer), we confirm that:
1. We are purchasing the Notes for our own account, or for one or more
investor accounts for which we are acting as a fiduciary or agent, in
each case for investment, and not with a view to, or for offer or sale
in connection with, any distribution in violation of the Securities
Act, subject to any requirement of law that the disposition of our
property or the property of such investor account or accounts be at
all times within our or their control and subject to our or their
ability to resell the Notes pursuant to Rule 144A, Regulation S or any
exemption from registration available under the Securities Act.
2. We are an institutional "accredited investor" within the meaning of
Rule 50l(a)(l), (2), (3) or (7) under the Securities Act who is
purchasing Notes with a principal amount of at least $250,000 and, if
the Notes are to be purchased for one or more accounts (the "investor
accounts") for which we are acting as fiduciary or agent, each such
account is an institutional accredited investor who is purchasing
Notes with a principal amount of at least $250,000. In the normal
course of business or our investing activities, we invest in or
purchase securities similar to the Notes and we have such knowledge
and experience in financial business matters that we are capable of
evaluating the merits and risks of purchasing the Notes. We are aware
that we (or any investor account) may be required to bear the economic
risk of an investment in the Notes for an indefinite period of time
and we (or such investor account) are able to bear such risk for an
indefinite period.
3. We acknowledge that none of the Issuer, the initial purchasers or any
persons representing any of them has made any representation to us
with respect to any such entity or the offering or sale of any Notes,
other than the information contained in the Issuer's offering
memorandum dated February 11, 2003, related to the Notes, which
offering memorandum has been delivered to it and upon which it is
relying in making its investment decision with respect to the Notes.
Accordingly, we acknowledge that no representation or warranty is made
by the initial purchasers as to the accuracy or completeness of such
materials. We have had access to such financial and other information
concerning the Issuer and the Notes as we have deemed necessary in
connection with our decision to purchase any of the Notes including an
opportunity to ask questions of, and request information from, the
Issuer and the initial purchasers.
4. We understand and agree that the offer and sale of the Notes have not
been registered under the Securities Act and that such Notes are being
offered only in a transaction not involving any public offering within
the meaning of the Securities Act, and that (A) if we decide to
resell, pledge or otherwise transfer such Notes on which a legend
setting forth these restrictions appears, such Notes may be resold,
pledged or otherwise transferred only (i) to the Issuer, (ii) in a
transaction entitled to an exemption from registration provided by
Rule 144 under the Securities Act, (iii) so long as such Notes are
eligible for resale pursuant to Rule 144A, to a person whom we
reasonably believe is a qualified institutional buyer that purchases
for its own account or for the account of a qualified institutional
buyer to whom notice is given that the resale, pledge or other
transfer is being made in reliance on Rule 144A, (iv) outside the
United States in a transaction meeting the requirements of Regulation
S, (v) in accordance with another exemption from the registration
requirements of the Securities Act (and based upon an opinion of
counsel acceptable to the Issuer), in each case in accordance with any
applicable securities laws of any state of the United States or (vi)
pursuant to a registration statement which has been declared effective
under the Securities Act and (B) we will, and each subsequent holder
is required to, notify any purchaser of Notes from us or it of the
resale restrictions referred to in (A) above, if then applicable. We
acknowledge that the foregoing restrictions apply to holders of
beneficial interest in the Notes, as well as to holders of the Notes.
5. We understand that, on any proposed resale of any Notes, we will be
required to furnish to the trustee and the Issuer such certifications,
legal opinions and other information as the trustee and the Issuer may
reasonably require to confirm that the proposed sale complies with the
foregoing restrictions. We further understand that the Notes purchased
by us will bear a legend to the foregoing effect.
6. We acknowledge that the Issuer, the trustee, the initial purchasers
and others will rely upon the truth and accuracy of the foregoing
acknowledgements, representations and agreements and agree that if any
of the foregoing acknowledgements, representations or agreements are
no longer accurate, we shall promptly notify the Issuer, the trustee
and the initial purchasers. If we are acquiring the Notes as a
fiduciary or agent for one or more investor accounts, we represent
that we have sole investment discretion with respect to each such
account and we have full power to make the foregoing acknowledgements,
representations and agreements on behalf of each account and that each
such investor account is eligible to purchase the Notes.
7. The Issuer, the trustee and the initial purchasers are entitled to
rely upon this letter and are irrevocably authorized to produce this
letter or a copy hereof to any interested party in any administrative
or legal proceeding or official inquiry with respect to the matters
covered hereby.
Very truly yours,
By:
Name:
Title: